Com. v. Abdullahi, F.

J-S54040-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FOWZIA MUSSE ABDULLAHI :
:
Appellant : No. 154 MDA 2019
Appeal from the Judgment of Sentence Entered December 19, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0001497-2018
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
JUDGMENT ORDER BY DUBOW, J.: FILED NOVEMBER 27, 2019
Appellant, Fowzia Musse Abdullahi, appeals from the December 19,
2018 Judgment of Sentence that was entered in the Lancaster Court of
Common Pleas after she entered an open guilty plea to Fleeing or Attempting
to Elude a Police Officer, Resisting Arrest, and Hindering Apprehension of
Prosecution.1 After careful review, we affirm.
The relevant factual and procedural history is, briefly, as follows. On
November 26, 2017, police initiated a traffic stop of Appellant’s vehicle after
observing Appellant’s daughter—who had a warrant out for her arrest—enter
the passenger side of the vehicle. Police arrested Appellant after she fled the
scene of the traffic stop and later refused to exit the vehicle by holding onto
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1 75 Pa.C.S. § 3733(a) and 18 Pa.C.S. §§ 5104, 5105(a)(2), respectively.
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the steering wheel, causing police officers to use force to remove her from the
vehicle.
Appellant appeared for a jury trial on December 19, 2018, aided by an
interpreter. Prior to the start of jury selection, the Commonwealth informed
the trial court that it just came into possession of an audio and video recording
of an interview between a police officer and Appellant, demonstrating that
Appellant was able to communicate effectively with the police officer in
English. The trial court allowed Appellant and her counsel to view the video
in open court prior to jury selection. After viewing the video, Appellant’s
counsel requested a continuance to review the video evidence with his client.
The trial court granted Appellant’s request, took a recess, and provided a
conference room for Appellant and her counsel. Upon returning to the
courtroom, Appellant entered an open guilty plea to all charges and the trial
court immediately sentenced Appellant to an aggregate sentence of two years
of probation.
On January 17, 2019, Appellant simultaneously filed an untimely Nunc
Pro Tunc Post-Sentence Motion in the Nature of a Motion to Withdraw Guilty
Plea and a timely Notice of Appeal. On January 23, 2019, the trial court issued
an Order finding, “said Motion is untimely in that counsel on the same date
filed a Notice of Appeal to the Superior Court, relieving this Court of
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jurisdiction.” Order, 1/23/19.2 Both Appellant and the trial court complied
with Pa.R.A.P. 1925.3
Appellant raises a sole issue for our review: “Did the trial court err in
denying [Appellant]’s request for a continuance the day of trial where the
Commonwealth turned over video evidence it intended to use at trial
minutes before the jury was selected which resulted in [Appellant]’s
involuntary guilty plea?” Appellant’s Br. at 4. Appellant argues that the trial
court’s failure to grant a continuance caused her guilty plea to be involuntary.
Appellant’s Br. at 13-15. Because Appellant failed to file a timely Post-
Sentence Motion, Appellant failed to preserve this issue for our review.
When a defendant enters a guilty plea, she waives her right to challenge
on direct appeal all nonjurisdictional defects except the legality of her sentence
and the validity of her plea. Commonwealth v. Pantalion, 957 A.2d 1267,
1271 (Pa. Super. 2008). “A defendant wishing to challenge the voluntariness
of a guilty plea on direct appeal must either object during the plea colloquy or
file a motion to withdraw the plea within ten days of sentencing.”
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2 See Commonwealth v. Klein, 781 A.2d 1133, 1135 (Pa. 2001) (holding
that where a Notice of Appeal has been filed, a trial court cannot act further
in the matter); Pa.R.A.P. 1701.
3 Appellant filed an untimely Rule 1925(b) Statement, but the trial court
nevertheless addressed the issues contained in the untimely Statement.
Accordingly, we decline to find waiver based on the untimely Statement. See
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en banc)
(explaining that “this Court many decide the appeal on the merits if the trial
court had adequate opportunity to prepare an opinion addressing the issues
being raised on appeal.”).
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Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (citing
Pa.R.Crim.P. 720). Failure to do so results in waiver. Id. See also
Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa. Super. 2006)
(explaining that if an appellant fails to challenge his guilty plea in the trial
court, he may not do so on appeal). “[A] party cannot rectify the failure to
preserve an issue by proffering it in response to a Rule 1925(b) order.”
Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 469 (Pa. Super. 2017)
(citation omitted; emphasis removed).
Here, Appellant did not preserve this challenge at her plea colloquy or
in a timely Post-Sentence Motion. Accordingly, she has waived any challenge
to the voluntariness of her plea. See Lincoln, supra.Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/2019
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